ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027825
Parties:
| Complainant | Respondent |
Parties | Anselm Ssebuguzi | Bluebell Horizons Limited trading as Monastery Inn |
Representatives | Self-represented | Michael O'Sullivan, ARRA HRD |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00035520-001 | 31/03/2020 |
Date of Adjudication Hearing: 25/02/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 31st March 2020, the complainant referred a complaint pursuant to the Payment of Wages Act. The complaint was scheduled for adjudication on the 25th February 2021.
Following the designation of the Workplace Relations Commission per section 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, the hearing was held remotely. The complainant attended. The respondent was represented by Michael O’Sullivan and two witnesses gave evidence on its behalf.
In accordance with section 41 of the Workplace Relations Act 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant asserts that he worked for the respondent until the 1st December 2019 and that he was not paid for all the hours he worked. The respondent asserts that no wages are due to the complainant as he did not work beyond the 15th November 2019. |
Summary of Complainant’s Case:
The complainant outlined that he was not paid in full by his employer and was owed €500. He had commenced employment on the 14th November and resigned on the 1st December. He had worked 104 hours and was due the national minimum wage, then €9.80 per hour. He was paid in the first week and later received €280. He also did not get a contract and was harassed.
The complainant outlined that he was paid the first week on the 17th November and a further €280 on the 1st December. The December payment was made by the Head Chef and was in cash. He had not received a pay slip.
The complainant outlined that after the first week, he worked for the respondent for the following hours: Monday, 18 November for 7 hours; Tuesday, 19 November for 6 hours; Wednesday, 20 November for 7 hours; Saturday, 23 November for 7 hours and Sunday, 24 November for 12 hours. The complainant said that he worked: 25 November for 7 hours; 28 November for 7 hours; 29 November for 7 hours; Saturday, 30 November for 7 hours and 12 hours on the Sunday, 1 December. This adds up to 79 hours.
The complainant said that his log card was taken by the respondent, and he had used this every day to clock in and out. Staff were normally paid on a Sunday, and he would be last to leave. The respondent owner left before he had finished closing, so he would not be paid on a Sunday. On the 24th November, the head chef told him that he would be paid all the monies due on the 1st December. |
Summary of Respondent’s Case:
The respondent contested the claim. Referring to the clock card, it outlined that the complainant was employed for three days (the 12th, 14th and 15th November). It submitted that the complainant was paid €198 for the 22 hours worked. The complainant had been asked for his PPSN to set him up on the system, but he did not provide the information. The complainant was to be paid €9 an hour until he supplied the document. There was another case taken by the complainant against the respondent pursuant to the Employment Equality Act.
The head chef outlined that the complainant had only worked for three days. He had given the complainant the money and the complainant signed for it. The head chef then told that the complainant that he would be offered the job but that he must present his papers. The head chef could not recall what hours the complainant had been rostered for on the week of the 18th November and there was a question mark next to his name on the roster. The head chef called in other staff members and his spouse to work the hours on the 24th November.
The head chef said that he did not see the complainant for two weeks after the 17th November, but the complainant later attended to protest outside the respondent premises. The complainant continued the protest for three weeks.
The manager outlined that kitchen porters only work from Thursday onwards, so the complainant would not have worked on a Monday. The restaurant is quiet at the beginning of the week. He outlined that all employees were required to have a PPSN. Staff members were always paid, and the complainant was paid for the hours he worked. The manager said that the complainant was owed €16.80 for annual leave accrued on the three days. The respondent wanted to offer the complainant the job as he was a good kitchen porter, but he needed to be registered. His protests caused damage to the business, beyond the €500 he was looking for.
It was submitted that the respondent was consistent as the other WRC decision referred to his position being left open for two weeks. The complainant was paid for the 22 hours he worked at €9 per hour.
In closing, the respondent stood over its submission and evidence regarding the not well-founded claim as only three days were properly payable. |
Findings and Conclusions:
This is a Payment of Wages complaint where the complainant seeks the payment of wages, he says are due to him. The respondent states that the wages are not due as the complainant was paid for all the hours he worked. The parties disagree about what hours the complainant worked, with the respondent saying that the complainant worked far fewer hours and last worked on the 15th November 2019. The respondent refers to the clock-in card and the invoice slip, documenting the payment of wages. The parties differed as to how much was paid: the respondent says that there was one payment of €198 and the complainant that there were two payments, one of €198 and a second of €280.
First, the applicable rate of pay was €9.80 per hour as this was the national minimum wage at this time and the wage properly payable to any employee aged over 18 (as the complainant is). I award the shortfall for each hour worked.
Second, on balance, I prefer the evidence of the complainant that he worked the hours he stated between the 18th November and the 1st December 2019. The respondent is a busy venue and Sundays are particularly important trading days (see the 12 hours shift worked by a kitchen porter). There were two Sundays in the disputed period (24th November and 1st December) and it was not clear from the evidence who did the kitchen porter role on these days, if it was not the complainant (as contended by the respondent). I am bolstered by the evidence and determination of the related Employment Equality matter, which relates to the complainant’s claim of racial harassment and an incident on the 1st December 2019, when he was still an employee. While the complainant was found not to have been discriminated against, the factual narrative set out by both parties in that case corresponds with the complainant’s narrative in this case, i.e. that his employment ended on the 1st December 2019 (I have not cited the ADJ reference of that case as the adjudication officer anonymised the decision on publication. It had been issued to the parties before the hearing of this complaint).
Third, the complainant was not paid holiday pay and it was acknowledged that he was due it.
Fourth, I take the 22 hours in the first week as stated in the invoice-pay slip as an accurate record of the hours worked over the first week. During the hearing, the complainant set out the hours worked in the disputed period. As stated above, this amounts to 79 hours. He, therefore, worked a total of 101 hours.
There is a shortfall in wages of €590.80, calculated as follows. First, the complainant is due €17.60 to bring his wages for the first week up to the statutory minimum wage. Second, he is due €774.20 for the 79 hours worked between the 18th November and the 1st December 2019. Third, he is due €79 in accrued annual leave. These three amounts add up to €870.80. I have already factored in that the complainant was paid €198 for most of the wages of the first week. The complainant received the additional payment of €280, which I deduct from the €870.80 owed to him. The complainant is, therefore, owed €590.80.
Where a complaint is deemed well-founded, section 6 of the Payment of Wages Act provides that an adjudication officer shall award ‘compensation of such amount (if any) as reasonable in the circumstances’, not exceeding the limits set out in section 6(1). I decide that it is reasonable to award compensation in the amount I have calculated as owed. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00035520-001 I decide that the complaint of a contravention of the Payment of Wages Act is well-founded, and the respondent shall pay to the complainant compensation of €590.80. |
Dated: 3rd February 2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Payment of Wages Act / deduction / compensation |
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